Citation Nr: 0506268
Decision Date: 03/04/05 Archive Date: 03/15/05
DOCKET NO. 94-47 751 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to service connection for disorders of the lung,
heart, blood, brain, and right eye, claimed as secondary to
the exposure to mustard gas in service.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
M.S. Lane, Counsel
INTRODUCTION
The appellant served in the National Guard from January 1956
to March 1957, with subsequent service in the Army Reserve.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a June 1994 rating decision.
The Board remanded this case to the RO in February 1997 and
August 2000 for additional evidentiary development.
In a December 2001 decision, the Board denied the claims of
service connection for lung, heart, blood, brain and right
eye disorders, claimed as secondary to exposure to mustard
gas in service. The appellant subsequently filed an appeal
with the United States Court of Appeals for Veterans Claims
(Court).
While the case was pending at the Court, the VA Office of
General Counsel filed an unopposed Motion requesting that the
Court vacate the Board's December 2001 decision and remand
the case for further development and readjudication.
In a March 2003 Order, the Court granted the Motion, vacating
the December 2001 decision of the Board, and remanding the
claim for compliance with directives that were specified in
the Motion.
In October 2003, the Board once again remanded this case to
the RO for additional evidentiary development.
FINDINGS OF FACT
1. The appellant is not shown to have been exposed to
mustard gas during service.
2. Disorders of the lung, heart, blood, brain, and right eye
are not shown to be due to mustard gas exposure or any other
event of the veteran's National Guard and Reserve service.
CONCLUSION OF LAW
The appellant is not shown to have disability of the lung,
heart, blood, brain and right eye due to mustard gas exposure
or other disease or injury that was incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.316
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
claimants in substantiating their claims. VCAA § 3(a), 114
Stat. 2096, 2096-2097 (2000) (now codified as amended at
38 U.S.C.A. §§ 5103, 5103A (West 2002).
As discussed in the Introduction, the issues presented in
this case were denied by the Board in a December 2001
decision. The appellant subsequently appealed that decision
to the Court. While that case was pending at the Court, the
VA General Counsel filed a motion to vacate the Board's
December 2001 decision.
In that Motion, it was asserted that the Board had failed to
identify evidence showing that the appellant had been advised
which portion of the information and evidence, if any, was to
be provided by him, and which portion would be provided by
VA, as required by the VCAA. See Charles v. Principi, 16
Vet. App. 370 (2002).
In accordance with the concerns raised in the Motion, the
Board remanded this case to the RO in October 2003 in order
to ensure full compliance with the notification provisions of
VCAA, pursuant to Charles and other applicable authority.
The Board finds that the notification requirements of VCAA
have been satisfied in this case. In this regard, the Board
notes an evidence development letter dated in February 2004
in which the RO advised the appellant of the type of evidence
necessary to substantiate his claims.
In this letter, the RO also advised the appellant of his and
VA's responsibilities under VCAA, to include what evidence
should be provided by him and what evidence should be
provided by VA. The appellant was also advised to identify
any additional evidence that he believed might be relevant to
his claim and what VA would do to assist him in the
development of his claim.
Although this letter was issued after the initial
adjudication of his claims by the agency of original
jurisdiction (AOJ), the Board finds that the RO did not err
with respect to the timing of the VCAA notice requirement, as
VCAA had not been enacted at the time that the RO initially
adjudicated his claims in the 1994 rating decision.
Furthermore, the notice letters provided to the appellant
were provided by the AOJ prior to the most recent transfer of
his case to the Board, and the content of that notice full
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b).
After the notice letter was provided, the claim was
readjudicated and an SSOC was issued. The appellant has been
provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices. Therefore, to decide the issues on appeal would not
be prejudicial to him.
The Board further finds that, to the extent possible, all
obtainable evidence identified by the appellant has been
obtained and associated with the claims folder and that he
has not identified any other pertinent evidence, not already
of record, which would need to be obtained for an equitable
disposition of this appeal.
In particular, the Board notes that the RO has obtained all
relevant treatment records identified, and the record
reflects that the appellant underwent VA examinations to
evaluate his claimed disorders of the lung, heart, blood, and
eye.
Although the RO also arranged for the veteran to undergo a VA
neurological in regard to his claimed brain disorder in
January 1999, the record reflects that the appellant failed
to report for this examination. There is no indication that
he attempted to reschedule the appointment or inquire about
an alternative examination date.
Because the appellant failed to appear for a scheduled VA
medical examination without good cause shown, the veteran's
claim must be decided based on the evidence of record. 38
C.F.R. § 3.655.
The record reflects RO has also contacted appropriate service
department sources in an effort to substantiate the claim of
mustard gas exposure in service. Similarly, the RO contacted
the National Personnel Records Center (NPRC) in order to
obtain the service medical records. Unfortunately, these
records could not be located by the NPRC.
In summary, the Board finds that VA has satisfied its duty to
assist the appellant to the extent possible by apprising him
as to the evidence needed, and in assisting him in the
development of his claim. 38 U.S.C.A. §§ 5103 and 5103A
(West 2002).
Factual Background
A report of physical examination completed for enlistment in
January 1956 is negative for any findings regarding the
lungs, heart, blood, brain, or right eye. No other service
medical records are associated with the claims folder.
Private clinical records dated in November 1981 show that the
appellant received treatment at that time for a possible
foreign body in the right eye. In the following month, he
was seen with complaints of a possible foreign body in the
left eye. His uncorrected visual acuity was found to be
20/25 in the right eye and 20/25 in the left eye.
Subsequent clinical records show that the appellant was
hospitalized at a private facility in October and November of
1984 for evaluation of a nodule on the left lower lobe of the
lung. Upon admission, he also complained of having
occasional chest pains which consisted of discomfort that he
described as sharp and pressing, which occurred over the left
upper thorax. He indicated that chest pain was occasionally
related to exercise, although it also occurred at rest and at
night. He reported that the pain had persisted for the past
two and a half years.
The appellant also gave a history of hospitalization at the
age of 21 for a "myocardial infarction or stroke," which he
described as involving an inability to move his right thigh.
It was noted that this had apparently resolved in about 10 to
15 days. The appellant also gave a history of having had an
episode of sudden blindness that was treated with "ointment"
and resolved.
During this hospitalization, the appellant underwent a
thoracotomy and biopsy of the lung nodule. A pathology
examination revealed findings of an old calcified
histoplasmosis granuloma of the lower lobe of the left lung.
No malignant criteria were met in the histologic specimen.
Other impressions noted were those of questionable angina
pain as well as questionable claudication; a questionable
history of myocardial infarction or cerebrovascular accident;
and a questionable episode of blindness that sounded like
transient ischemic attacks, although it was noted that it
could have been an eye infection.
Subsequent private clinical records reflect that, from 1986
to 1992, the appellant received occasional treatment for
vision problems, including foreign bodies in each eye. In a
September 1986 record, it was noted that his uncorrected
visual acuity was 20/100 in the right eye and 20 70 in the
left eye. It was noted at that time that he was also under
treatment for heart problems, high blood pressure and
respiratory difficulties. Subsequent treatment records
reflect further complaints of foreign bodies in both eyes.
In a June 1992 statement, an individual who reported served
with the veteran during a summer encampment in 1962 or 1963
at Indiantown Gap, Pennsylvania, reported that he and the
appellant had participated in a mustard gas drill. The
individual indicated that the appellant was overcome during
the drill and was never the same afterwards.
Private treatment records dated in 1993 show that the
appellant complained of a chronic intractable cough. The
lungs were noted to have been congested, and an assessment of
bronchitis was noted.
During a personal hearing held at the RO in January 1995, the
appellant testified that he was placed in a tent full of
mustard gas during a period of training with the National
Guard. He reported that he blew the air out of his gas mask
while in the tent and was promptly overcome by the fumes. He
indicated that he lost his health after that incident and
that the mustard gas had affected his brain, blood, heart,
right eye and lungs. The appellant testified that he was
hospitalized after the incident and was told that he had been
exposed to mustard gas. He reported that the incident
occurred during a summer camp in 1962 or 1963.
During this hearing, the appellant's wife testified that she
had been told by the widow of a recently deceased individual
who had undergone the same experience during military
training that the substance was mustard gas.
In a statement received by the RO in February 1995, a private
physician reported that the appellant had been treated in
September 1992 for a metallic body in the right eye.
A private chest x-ray study dated in June 1995 shows no
evidence of lung disease. The appellant's cardiac silhouette
was described as being normal.
In a July 1995 statement, a private physician stated that the
appellant had a diagnosis of chronic obstructive pulmonary
disease, which should improve if he moved in a warmer and
drier climate.
In a Report of Contact dated in June 1997, it was noted that
a search of the VA Participants List for Mustard Gas Exposure
had shown that the veteran's name was not on the list.
In response to an inquiry from the RO, a member of the staff
of the Historical Division of the U.S, Army Chemical and
Biological Defense Command explained in a June 1997 letter
that the appellant's exposure to mustard agent could not be
confirmed. It was also indicated that the installation at
Indiantown Gap was not a facility involved in human
experimentation.
In an August 1997 letter from the U.S. Army Medical Research
and Material Command at Fort Detrick, Maryland, it was noted
that a search of mustard gas exposure research participant
records had shown that the appellant's name was not listed as
a participant. It was also noted that it was possible that a
record might exist if the claimant was exposed during
training, and that a query had been forwarded to the U.S.
Army Chemical & Biological Defense Command at the Aberdeen
Proving Ground in Maryland.
Thereafter, in a September 1997 letter from the U.S. Army
Chemical & Biological Defense Command, it was noted that a
search of the organizations files had failed to confirm that
the appellant had been exposed to mustard gas.
In a February 1998 statement, a private physician indicated
that the appellant had had multiple foreign bodies removed
from his eyes over 20 years.
In the report of a VA eye examination conducted in December
1998, it was noted that the appellant had reported a history
of having vision problems in one eye ever since being exposed
to mustard gas while in the military service. An examination
revealed visual acuity in the right eye of 20/40 that
pinholed to 20/30 with best correction.
The appellant reported that he was totally blind in the left
eye and denied any visual response, including light response,
in the left eye. The examiner found no evidence of ocular
injury due to vesicant (mustard gas) at any time in the past.
The examiner also found no light perception in the left eye,
which was noted to be of unknown etiology.
The examiner further indicated there was no anterior segment
or posterior segment or optic nerve evidence of any sort that
would explain a lack of light perception in the left eye.
The examiner also indicated that there was no evidence of
exposure to mustard gas or any other agent which affected the
surface of the eyes and the examiner would not speculate on
the actual nature or etiology of the perceived "no light
perception" in the left eye.
The VA examiner further commented that, when he discussed the
prior testimony and records in the claims file regarding loss
of vision in the right eye and the appellant's statements
during the current examination that the disability in
question affected the left eye, the appellant was noted to
state definitely that it was the left eye that had no vision.
He said that the left eye had been poor ever since the
"mustard gas thing."
The examiner reiterated that he had found the anterior
segment of the left eye, where any damage from mustard gas or
other chemical agent would have occurred, to be completely
normal. He added that surface signs of prior injury were not
present and intraocular examination also showed no
explanation for the appellant's claimed marked decrease in
vision in the left eye.
In the report of a VA heart examination conducted in December
1998, it was noted that the appellant had indicated that he
had experienced blood gushing from the top of his head over
the last five years. He also reported that he had had his
lung resected in the past because of cancer, that he had had
five heart attacks following his lung surgery and that the
heart attacks involved chest pain and loss of consciousness
that lasted for days. A history of stroke was also reported.
He complained of having dyspnea on exertion, shortness of
breath and occasional episodes of chest pain.
The examiner noted an impression of chronic obstructive
pulmonary disease secondary to cigarette smoking, thoracotomy
for chronic bronchitis or bronchiectasis 15 years ago.
In the report of a December 1998 VA hematology examination,
the examiner indicated that she had nothing to report as far
as determining whether the appellant had any hematologic
problems. It was noted that he did not give a history of any
hematologic disorder and that it was at times difficult to
understand what he was saying. The veteran reportedly
refused to undergo any blood tests.
During a December 1998 VA respiratory examination, the
appellant reported that he had been exposed to mustard gas
during a training exercise conducted while he was in National
Guard summer camp. The examiner noted that the history of
this episode was very vague.
During the examination, the appellant complained of having
shortness of breath and intermittent wheezing. A
cardiovascular examination was found to be entirely within
normal limits. An examination of the appellant's chest
revealed the presence of a thoracotomy scar and a wound from
an old chest tube on the left lateral posterior wall.
Percussion revealed a normal note, bilaterally; and
auscultation revealed normal breath sounds, bilaterally. It
was noted that there were no rales, rhonchi or wheezes. A
chest x-ray study revealed possible minimal fibrosis and no
acute pulmonary disease.
The examiner noted diagnoses of status post left thoracotomy
for unclear reasons; intermittent dyspnea on exertion which
was probably related to inadequately treated asthma; and
possible obstructive sleep apnea that could not be confirmed
without further testing. The examining physician commented
that, given the available information, he was unable to come
up with a clear-cut diagnosis and conclusion regarding
sequelae from irritant gas exposure.
In a July 1999 statement, a private physician indicated that
the appellant had been seen in July 1992 after being struck
in the right eye while repairing his car. He was noted to
have had a deep metallic corneal foreign body that was
removed. It was also noted that, in September 1992, the
appellant was again seen after being struck in the right eye
and another metallic fragment was removed.
The physician indicated that the appellant subsequently had
slow healing of the cornea which eventually healed with a
small central scar. He was again seen in February 1998 and
again was found to have a large central corneal foreign body.
This was reportedly removed and the eye was found to be
clear.
Analysis
The appellant is seeking service connection for disorders of
the lung, heart, blood, brain and right eye. He essentially
that these disabilities developed as a result of exposure to
mustard gas during service.
In this regard, the Board notes that the appellant testified
during his January 1995 hearing that he was first exposed to
mustard gas during National Guard training in 1962 or 1963.
He indicated that he had been overcome by the gas and was
hospitalized for two days.
The appellant also testified that he was again exposed to
mustard gas while serving at Indiantown Gap. He reported
that they were specifically told that they were being exposed
to mustard gas and wore only fatigues during that exposure.
The record reflects that the NPRC has been unable to locate
the service medical records. Under such circumstances, where
service medical records have been lost or destroyed, the
Court has held that there is a heightened obligation on the
part of VA to explain findings and conclusions and to
consider carefully the benefit-of-the- doubt rule. Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1
Vet. App. 365, 367 (1991).
In general, applicable laws and regulations state that
service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303.
Service connection may also be granted for a disease first
diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Claims based on the chronic effects of exposure to mustard
gas are governed by the provisions of 38 C.F.R. § 3.316.
Those provisions are as follows:
(a) Exposure to the specified vesicant agents during active
military service under the circumstances described below
together with subsequent development of any of the indicated
conditions is sufficient to establish service connection for
that condition:
(1) Full-body exposure to nitrogen or sulfur mustard during
active military service together with the subsequent
development of chronic conjunctivitis, keratitis, corneal
opacities, scar formation, or the following cancers:
nasopharyngeal, laryngeal; lung (except mesothelioma); or
squamous cell carcinoma of the skin;
(2) Full-body exposure to nitrogen or sulfur mustard or
Lewisite during active military service together with the
subsequent development of a chronic form of laryngitis,
bronchitis, emphysema, asthma, or chronic obstructive
pulmonary disease;
(3) Full-body exposure to nitrogen mustard during active
military service together with the subsequent development of
acute nonlymphocytic leukemia.
(b) Service connection will not be established under this
section if the claimed condition is due to the veteran's own
willful misconduct, or if there is affirmative evidence that
establishes a non-service-related supervening condition or
event as the cause of the claimed condition.
The Board notes that the regulation establishing a
presumption of service connection for certain disorders based
on exposure to mustard gas, 38 C.F.R. § 3.316, was
promulgated because a limited number of military personnel,
primarily Navy personnel, were experimentally exposed to
mustard gas during full-body, field, or chamber tests of
protective equipment during World War II.
The testing was classified, and military personnel were
instructed not to disclose participation in the testing.
Because these veterans would have difficulty establishing
service connection for any disability resulting from the
testing, the presumptive provisions were implemented in 1992,
based upon the results of a review of the relevant medical
literature. See Claims Based on Chronic Effects of Exposure
to Mustard Gas, 57 Fed. Reg. 1,699 (Jan. 15, 1992).
In Pearlman v. West, 11 Vet. App. 443 (1998), the Court
addressed the application of 38 C.F.R. § 3.316. The Court
indicated that, under 38 C.F.R. § 3.316, the initial burden
of submitting a claim was relaxed for veterans who
subsequently developed conditions specified by the
regulation, to the extent that the regulation did not require
evidence of a medical nexus for those conditions, but rather
a nexus was presumed if the other conditions required by the
regulation were met. Pearlman, 11 Vet. App. at 446.
In Pearlman, the Court further indicated that "whether or not
the veteran [met] the requirements of this regulation (38
C.F.R. § 3.316), including whether or not the veteran was
actually exposed to the specified vesicant agents, is a
question of fact for the Board to determine after full
development of the facts. The Board therefore, must consider
the credibility of the veteran's testimony in light of all
the evidence in the file.... Thus, under this regulation, the
Board [was] charged with the very difficult task of
ascertaining what transpired more than fifty years ago with
very little evidence to consider." Pearlman, 11 Vet. App. at
446.
In this case, there is no indication in the treatment records
currently associated with the claims folder that the
appellant has ever developed any of the disabilities
recognized under 38 C.F.R. § 3.316(a) as being related to
exposure to nitrogen or sulfur mustard or Lewisite.
In this regard, the Board notes that the appellant underwent
a thoracotomy in November 1984 for removal of a lung nodule,
and that it was initially thought that the nodule represented
carcinoma. However, biopsy revealed no evidence of
malignancy in the nodule. He was given a final diagnosis of
an old calcified histoplasmosis granuloma of the lower lobe
of the left lung. Thus, the Board finds that the November
1984 thoracotomy was not the result of lung cancer.
The Board notes that the other treatment records associated
with the claims folder are negative for any diagnoses of lung
cancer or any other disability recognized under 38 C.F.R.
§ 3.316. Thus, the Board finds that the provisions of 38
C.F.R. § 3.316 do not apply.
The Board is cognizant that, even if the criteria for service
connection under the provisions of 38 C.F.R. § 3.316 are not
met, an appellant is not precluded from establishing service
connection by proof of direct causation. See Combee v.
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the Board
has also considered the claim on a direct service connection
basis.
However, having reviewed the complete record, the Board finds
that the preponderance of the evidence establishes that the
appellant did not incur disability of the lung, heart, blood,
brain or right eye, as a result of any incident of military
service, to include exposure to mustard gas in service.
In reaching these conclusions, the Board found the most
probative evidence of record to be the responses from service
department sources regarding the RO's inquires into the
alleged exposure to mustard gas.
In this regard, the Board notes that the RO conducted a
thorough search of available relevant sources in attempt to
verify the alleged exposure to mustard gas. Specifically,
the RO consulted the Participants List for Mustard Gas
Exposure maintained by the VA; the U.S. Army Medical Research
and Material Command at Fort Detrick, Maryland; the U.S. Army
Chemical & Biological Defense Command at the Aberdeen Proving
Ground in Maryland; and the Historical Division of the U.S,
Army Chemical and Biological Defense Command.
However, none of these organizations provided any information
to establish that the appellant had ever been exposed to
mustard gas in connection with any period of active or
inactive duty for training. In fact, consultation with these
sources revealed that the appellant was not included among
the lists of participants in mustard gas exposure maintained
by VA and the Army Medical Research and Material Command, and
that the military installation at Indiantown Gap was not a
site where tests involving mustard gas had taken place.
In light of this information, the Board concludes that the
preponderance of the evidence is against finding that the
appellant was exposed to mustard gas during service.
The Board notes that the appellant and the individual who
submitted the June 1992 statement supporting the assertions
that he was exposed to mustard gas are not considered
competent to establish that he in fact was exposed to mustard
gas during service. See Pearlman, supra.
While they may sincerely believe that they were exposed to
mustard gas in service, the Board believes the lack of
verification from these multiple service department sources
to be more credible than their recollections, sincere though
they may be, several decades after the fact.
The Board has reviewed the medical evidence submitted in
support of the claim, as well as the reports of VA
examinations conducted in December 1998. However, there is
nothing in this evidence that could service to establish that
the appellant was exposed to mustard gas in service.
In addition, these records are negative for any finding that
the appellant incurred disorders of the lung, brain, blood,
heart or right eye based as a result of such exposure or due
to any other disease or injury incurred in service.
Although the appellant may sincerely believe that he
developed disabilities as a result of exposure to mustard
gas, he is not considered qualified to render medical
opinions regarding diagnoses or the etiology of medical
disorders, and his opinion is entitled to no weight or
probative value in that regard. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993)
In short, the Board finds that the evidence of record fails
to support a conclusion that the claimed disorders of the
lung, heart, blood, brain, and right eye are related to
mustard gas exposure or any other disease or injury in
service. Thus, the benefits sought on appeal are denied.
ORDER
Service connection for disorders of the lung, heart, blood,
brain and right eye as secondary to the exposure to mustard
gas in service is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs